PANDEMIC POWERS AND THE CONSTITUTION

Introduction In just over four months, a single case of COVID-19 in Wuhan, China spread to nearly 4 million people and caused over 270,000 fatalities, leaving the world desperate for treatments, vaccines, or rapid testing technology to help bring an end to physical distancing. On April 12, Alberta Premier Jason Kenney expressed frustration at a perceived delay in Health Canada’s drug and device approval times, stating on Twitter that “I have directed our officials to consider use of COVID19 tests, vaccines, or medications that have been approved by the high standards of at least one credible peer country’s drug agency… We won’t wait for Health Canada to play catch up.”[1]

Public health is quite different from traditional healthcare. Whereas healthcare involves medical interventions between health professionals and individual patients, the field of public health attempts to maintain the health of a population. Rather than health of a person, the objective in public health interventions is “breaking the chain of transmission of infection in a community.”[1] This implicates more stakeholders than conventional healthcare and has wider-ranging effects. The role of law is central to public health interventions in this regard as it is the mechanism that allows for the coordinated action of different authorities necessary to respond to public health issues, especially in an emergency. Law creates a structure within which various public health officials and state authorities can act together to protect the population’s health in a crisis.[2]

Federal-provincial division of powers
Public health: The COVID-19 pandemic has brought to the fore the complicated relationship between federal and provincial jurisdiction over public health. On the one hand, the provinces have historically been viewed as having primary responsibility for creating public health institutions and laying down public health norms. The front-line response to COVID-19, such as closing down non-essential businesses, government offices and schools, and sharply restricting the use of public property, has been led by local and provincial public health authorities. But on the other hand, the COVID-19 pandemic originated outside Canada, is global in scope, and requires a coordinated, comprehensive international response. Moreover, an infectious disease outbreak in one province affects all the others, because of inter-provincial mobility — COVID-19 does not respect provincial borders. The international and interprovincial dimensions of public health can only be addressed by the federal government.

Over the past two months, the federal government, the provinces, and municipalities have exercised a variety of legal powers to respond to the COVID-19 pandemic. Not surprisingly, a large number of constitutional issues have emerged — and could soon give rise to constitutional challenges in the courts. While physical distancing measures are beginning to generate controversy as infringements of the freedoms of assembly and association, they are only one of a long and growing number of constitutional issues, including those arising from: domestic violence; contact tracing via cellphone data; resource allocation decisions in hospitals for end-of-life care; the federal-provincial division of powers with respect to public health (including interprovincial transport and the Emergencies Act); and the delegation of legislative powers by Parliament and provincial legislatures to the executive.

As part of the Verfassungsblog’s excellent symposium on legal responses to the Covid-19 pandemic, Dean Knight penned an especially insightful contribution on New Zealand, noting how the response alla fine del mondo has taken various forms. In this post, I hope to expand on Dean’s contribution, explaining how governments in Canada have used primary legislation, delegated legislation, soft law and persuasion to respond to the spread of the novel coronavirus, and identifying the different types of accountability challenge attached to these different forms of state power.

Canada is in full emergency mode in its bid to flatten the pandemic curve. But so far the federal government has not declared a federal state of emergency in terms of the Emergencies Act[1], although it has discussed publicly the pros and cons of taking this step and has been urged to do so on the basis that such a declaration would enable a nationwide testing program. There are four main reasons for this hesitation to declare a national state of emergency.